United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
the court is petitioner Robert Earl Davies' motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. ECF No. 26. The United States filed a
response (ECF No. 31), but Davies failed to reply. Because
Davies was not sentenced under the Armed Career Criminal Act
(“ACCA”) or under a federal statute or sentencing
guideline that incorporates a crime-of-violence definition,
the U.S. Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015) is inapplicable to
his sentence. The court will therefore deny his motion and
deny him a certificate of appealability.
November 6, 2012, Davies pled guilty, without the benefit of
a plea agreement, to five counts of Hobbs Act robbery under
18 U.S.C. § 1951. ECF No. 17; see also ECF No.
1. On April 1, 2013, this court sentenced him to 84 months of
imprisonment. ECF Nos. 22-23.
to 28 U.S.C. § 2255, a prisoner may move the court to
vacate, set aside, or correct a sentence if “the
sentence was imposed in violation of the Constitution or laws
of the United States, or . . . the court was without
jurisdiction to impose such sentence, or . . . the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). “Unless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court shall cause notice thereof
to be served upon the United States attorney, grant a prompt
hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect thereto.”
Id. § 2255(b).
Davies is not entitled to relief
argues that he is entitled to relief under Johnson v.
United States. There, the U.S. Supreme Court ruled that
a portion of the ACCA's violent-felony definition, often
referred to as the “residual clause, ” was
unconstitutionally vague (i.e., “void for
vagueness”). Johnson, 135 S.Ct. at 2557. The
ACCA applies to certain defendants charged with unlawful
possession of a firearm under 18 U.S.C. § 922(g), such
as being a felon in possession of a firearm under §
922(g)(1). 18 U.S.C. § 924(e). The Supreme Court
subsequently held that Johnson announced a new
substantive rule that applied retroactively to cases on
collateral review, Welch v. United States, 136 S.Ct.
1257 (2016), thus allowing defendants to challenge their ACCA
convictions under section 2255.
Johnson has also sparked challenges to other federal
criminal statutes and sections of the U.S. Sentencing
Guidelines (“U.S.S.G.”) that incorporate a
“crime-of-violence” definition that includes a
residual clause similar or identical to the ACCA's.
Although some of these issues are currently on appeal, the
Supreme Court recently ruled in Beckles v. United
States, 137 S.Ct. 886 (2017) that “the advisory
Sentencing Guidelines, including [U.S.S.G.] §
4B1.2(a)'s residual clause, are not subject to a
challenge under the void-for-vagueness doctrine.”
Beckles, 137 S.Ct. at 896.
Davies was convicted of five counts of Hobbs Act robbery and
was therefore not sentenced under the ACCA. Additionally,
none of the sentencing guidelines that applied to his
offenses incorporated a crime-of-violence definition. And
even if such guidelines had applied, Beckles would
foreclose Davies' claim for relief. Accordingly, the
court will deny his motion.
The court will deny Davies a certificate of
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), “an appeal may not be taken to
the court of appeals from . . . the final order in a
proceeding under section 2255” unless a district court
issues a certificate of appealability (“COA”)
based on “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(1)(B).
“The petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong. To meet this
threshold inquiry, the petitioner must demonstrate that the
issues are debatable among jurists of reason; that a court
could resolve the issues in a different manner; or that the
questions are adequate to deserve encouragement to proceed
further.” Allen v. Ornoski, 435 F.3d 946, 951
(9th Cir. 2006) (internal citations, quotation marks, and
discussed above, Johnson v. United States is
inapplicable to Davies' sentence, and he has therefore
failed to make any showing of a denial of a ...